The Freedom of Information Act 2000 - Guidance for MPA staff

April 2009

Summary

The Freedom of Information Act 2000 (FoIA) requires us to:

• Make as much information as possible publicly available through a Publication Scheme (which we have placed on our website).
• Respond to individual requests to see information held by the MPA, unless we believe that one of the exemptions specified in the Act applies to all or part of that information. We have 20 working days to respond

The Information Commissioner is responsible for ensuring compliance with the Act. He approves Publication Schemes and will consider appeals from people who believe that they have been denied information to which they are entitled.

The MPA is committed to meeting its FoIA obligations in full. The need for public accountability in the delivery of London’s policing is one of the reasons why the MPA exists. Consequently, all MPA staff are required to follow both the letter and spirit of the FoIA.

It is important, however, that we avoid FoI becoming a bureaucratic process that gets in the way of our regular business and good practice in the way we already respond to the public and other organisations. We will therefore try to distinguish between ‘business as usual’ correspondence and requests for information that should be handled under the FoIA.

MPA units will continue to handle ‘business as usual’. The Liaison Section will deal with FoI requests. If an MPA unit considers it has received an FoI request, this should be passed immediately to the Liaison Section.

We will learn as we go along. The Act does not require people to state that they are making a request under FoI and sometimes we will have to make a judgement. No doubt we will make mistakes, so it is important that we have an effective appeals process.

Nor do we know how many requests we will receive and how complex they might be. We will need regular review points and to be prepared to change our processes if they are not working.

This guidance is designed primarily for unit heads and any staff with specific FoI responsibilities. However, unit heads are responsible for making sure that all staff are aware of what is required. This guidance provides:

• information about the Act’s provisions
• our processes for responding to FoI
• advice on FoI issues such as distinguishing between ‘business as usual’ and FoI requests; applying exemptions; third party consultation; and the public interest test
• corporate standards for record management

This guidance also identifies individual and unit responsibilities for the various aspects of FoI.

Index

• Summary of responsibilities
• The Publication Scheme
• The general right of public access to information
• FoI requests and ‘business as usual’
  • FoI requests
  • Business as usual
  • Guiding principles for all correspondence
• Dealing with FoI requests
  • The FoI process
  • Exemptions
  • The Public Interest Test
  • Third party consultation
  • Liaison with the MPS
• Useful links
• Appendix 1 - Application form
• Appendix 2 - FoI request handling
  • Annex 1 - ‘business as usual’ criteria
  • Annex 2 - Environmental Information Regulations (to be published)
  • Annex 3 - Protocol between the MPA and the MPS
  • Annex 4 - The form to request information from units
• Appendix 3 - MPA Records Management Policy
• Appendix 4 - Information on exemptions produced by the Department for Constitutional Affairs

Summary of responsibilities - All Staff

To be aware of the Authority’s responsibilities under the Freedom of Information Act and what it means for each member of staff

To make use of the unit’s hard copy and electronic filing system in such a way that any documents or information can be easily retrieved

In replying to any correspondence to meet the minimum standard of a response within 20 working days

To refer any queries from members of the public etc that may relate to FoI to the Liaison Unit (extension 57186)

Unit Heads

To satisfy themselves that processes are in place within their unit to meet FoI requirements, such as being able to retrieve documents quickly on request and that unit staff are aware of their obligations

To contact the Liaison Unit immediately if unsure whether a particular communication should be treated as an FoI request

To meet their obligations under the Authority’s Record Management Policy

To make sure documents which would be of public interest are passed (properly authorised) to the Online Communications Manager for inclusion in the FoI Publication Scheme

Liaison Unit

Ruth Hastings-Iqball ext 57186

To deal with all FoI requests (unless an alternative approach is specifically agreed in a particular case)

To maintain a log of FoI requests and performance data

Head of Secretariat

Simon Vile ext 57180

Overall responsibility for the Authority’s FoI response

Giving advice to staff and public on FoI matters

Decisions on applying any exemptions

Deputy Clerk

Considering any appeals against an MPA decision to withhold information

Online Communications Manager

Management and review of the web-based FoI Publication Scheme

The publication scheme

2.1 The MPA’s publication scheme follows the model developed by the Association of Police Authorities. It provides a framework within which the MPA can make publicly available as much information as possible. This applies particularly to our policies, procedures, guidance etc – both external and internal. The classes in our publication scheme are:

• What We Do
• Who We Are
• How We Work
• Our Policies and Procedures
• Involving You
• Our Plans, Performance and Reports
• Our Partners
• Press & Publicity
• Independent Custody Visitors’ Scheme
• Other Visiting Schemes
• Information the Authority holds

The scheme is available on our website and nearly all the documents can be accessed electronically.

2.2 The Website Manager in the Communications Unit manages the web-based publication scheme, although the Head of Secretariat is ultimately responsible for it. Could Unit Heads please make sure that:

• they actively consider making relevant documents publicly accessible in the publication scheme
• an electronic copy of these documents is sent to the Website Manager for inclusion in the publication scheme, and copied to Simon Vile
• when policies, procedures etc are updated, these are also updated on the publication scheme

2.3 The Liaison Unit is shown in the publication scheme as the point of contact if, for instance, someone wants a hard copy of one of our documents. However, if the request is made direct to an MPA unit there is no need to refer it to the Liaison Unit. We do not charge for providing hard copies unless there are particular circumstances, such as someone asking for multiple copies, or a copy of a very large document.

You should actively consider whether documents, policies etc that you are producing should be included in the publication scheme. When reviewing or updating documents please make sure that old versions in the publication scheme are also updated.

The general right of public access to information

3.1 The Act establishes a general right of public access to information held by public authorities. The main provisions of the Act are as follows:

• it applies to all recorded information of any age and is fully retrospective. It applies to any format, such as paper, digital, audio, maps, plans, images etc
• applications for information must be made in writing (but can be by email or fax) giving a name and address for correspondence (an email address is acceptable) and must include a description of the information requested.
• applications can be made by individuals and organisations from anywhere in the world
• the application does not have to be written in English
• we have a duty to provide advice and assistance to any person who proposes to make or who has made a request for information
• the applicant does not have to quote the Act for it to be an FOI request or to give a reason for the request
• the information must be supplied within 20 working days. The clock stops running if we need to get clarification from the applicant about what they are asking for. If there is to be a charge for supplying the information the clock also stops until payment has been received
• the Data Protection Act will continue to apply to personal data – people will still have the right of access to personal data about themselves but in most cases personal data about other people is protected from disclosure under FOIA
• there are ‘absolute’ and ‘qualified’ exemptions which can be applied to withhold all or part of the requested information. However, use of the qualified exemptions is subject to a public interest test
• The Act provides for a charging regime but the Government has still to decide what form this will take. Direct costs such as copying and postage can be charged in full
• we have an internal procedure for complaints about what we have or have not supplied. An applicant can also appeal to the Information Commissioner

We have a duty to provide advice and assistance. This includes helping someone with particular needs, for instance those who do not have English as their first language, blind people, or simply someone who is anxious about dealing with ‘officials’ or is not quite sure what they are looking for.

Equalities and diversity issues are fundamental to the FoI in ensuring that everyone has equal access to information held by the Authority.

Please be aware in any contact with an external person or organisation that you may be dealing with an FoI request and contact the Liaison Unit for advice.

FoI Requests and 'business as usual'

Introduction

4.1 We are making a distinction between FoI requests and ‘business as usual’.

4.2 The Liaison Unit will deal with all FoI requests (subject to comments made later in this section) so that it can:

• monitor numbers of requests and whether we are meeting the required deadline
• build up expertise and respond in a consistent way

This process may be reviewed in the light of experience and as we gain an understanding of the types of FoI requests that are received.

4.3 The MPA has developed criteria to try to define ‘business as usual’, i.e. the kinds of correspondence which are unlikely to be FoI requests and therefore will continue to be dealt with by the relevant MPA unit.

Freedom of Information requests

4.4 The Liaison Unit will receive most FoI requests but some may go direct to another MPA unit. Therefore, you need to bear this in mind and be able to recognise an FoI request if you receive one. Remember that somebody wanting information does not have to quote the FoI Act and the request can occur in a number of ways, for instance during an exchange of correspondence.

4.5 Some pointers to help you recognise an FoI request:

• it is in writing (email or fax are acceptable)
• refers to the Freedom of Information Act
• uses phrases like ‘please give me all information relating to…’ or ‘what evidence led you to the decision that …’
• asks for information that is not already publicly available
• asks for information that is not usually provided by you in your day-to-day work
• requests information about tenders and contracts
• asks for access to non-published financial information
• is a request from a journalist that goes beyond asking for the MPA comment on a particular issue

4.6 Here are some examples of valid FoI requests.

'Hi
Would you be able to email across a copy of the response the MPA eventually put in to the Home Office's consultation on police powers, following COP's consideration of revised draft on 8 October?'

'I am concerned at the effectiveness of 20 mph zones being introduced in Greenwich. I frequently use Westcombe Hill and find the speed limit routinely exceeded, often by a large margin. Could you please tell me how many successful prosecutions have been taken against motorists in Westcombe Hill since the first introduction of the 20 mph speed limit? ' (NB this is an FoI request that would be referred to the MPS)

'How do the burglary detection rates for Ealing borough in 2003/04 compare to those for 1998/99? ‘

I am a university student doing a dissertation on crime and disorder reduction partnerships and their impact in tackling anti-social behaviour. Could you please send me whatever information you have on this subject? '

This is an FoI request. However, because the request is very broad we would need to contact this person to try to narrow down the request to what they really want. Much if not all of the material we have will have been generated by other organisations, such as CDRPs themselves, the APA or the Home Office. However, as we hold that information we are responsible for providing it.

'I would like to know what conditions relating to non-performance have been included in the contract for the supply of body armour and also how much the contract was let for.'

There are exemptions in the FoIA relating to commercial information or information given in confidence. However, these can only be applied following a public interest test. It is likely that the information requested should be released.

'What evidence led you to the conclusion that Airwave radios are not a health hazard for police officers to use? '

'Please tell me how much your organisation spent on catering last year '

4.7 If an FoI request is received by an MPA unit it must be passed immediately to the Liaison Unit to deal with. If you are unsure whether correspondence constitutes an FoI request please check with the Liaison Unit.

4.8 Guidance like this cannot cover every eventuality. For instance the first example above (about the response to Home Office consultation) is an FoI request. But if it is from someone with whom you have regular dealings and the response is something you did then it does not make sense for you to pass the request to the Liaison Unit. However, in such cases would you please contact the Liaison Unit about it so that we can get an understanding of the kinds of requests that are being received in the organisation.

4.9 The MPA has an application form for FoI requests – we are encouraging people to use it but they are not obliged to. The application form is available on the website or in hard copy from the Liaison Unit – a copy is attached as Appendix 1

Business as usual

4.10 We do not want FoI to get in the way of units’ normal business. Therefore a distinction is drawn between FoI requests and ‘business as usual’. The following criteria will help in deciding whether a communication is ‘business as usual’, but there can be no hard and fast rules so you must always consider the possibility that it is an FoI request:

• Information requested by other public authorities or government departments (unless the FOIA is quoted) – but requests from individual councillors, MPs or Greater London Assembly members (or their researchers) to be treated as FoI requests
• Requests for information, briefings etc made by the MPA’s own members and staff, unless the FOIA is quoted
• Formal written questions, the answers to which are subsequently published – e.g. the Greater London Assembly’s Functional Bodies Question Time or the Mayor’s Question Time
• Correspondence which is purely seeking advice, a view or comment on an issue
• It is from an organisation or individual with whom you are in regular correspondence (though always remember it can still be an FoI request)
• Complaints against the Authority (unless there are additional factors, such as the complainant asking to see documentation)
• Data Protection subject access requests
• Requests from other organisations for personnel references
• Requests for recruitment packs and application forms
• Media enquiries that are looking for a comment from the Authority, as opposed to information held by the Authority

4.11 There will be some occasions when correspondence contains elements of both business as usual and FoI and where a pragmatic approach is needed. For example an email that asks:

'What value does the MPA place on Community Police Consultative Groups? Our CPCG grant has been cut for the third year running. How does the MPA think we can continue to operate on less and less funding? What did our neighbouring boroughs get and why?'

This letter is looking for a view or explanation from the MPA but it is also asking for information. In this case it makes sense for the Community Engagement Unit to respond as this may be part of a series of correspondence with this CPCG. But that unit must discuss and agree this approach with the Liaison Unit first. It should also be logged as an FoI request, responded to within 20 working days and the Liaison Unit copied into the reply.

Please always keep in mind that you may receive an FoI request.

If it is made by phone ask the person to put it in writing (letter, email or fax) and direct it to the Liaison Unit

If you have any doubt about whether correspondence is ‘business as usual’ or an FoI request (or both) please contact the Liaison Unit immediately to decide jointly how to respond to the correspondence

Guiding principles for all correspondence

4.12 There will be occasions when we have wrongly defined correspondence as ‘business as usual’. Looked at pragmatically, this does not matter as long as we follow FoI principles for all our dealings with others. You are therefore asked to adhere to the following principles

• Respond to all correspondence within a maximum of 20 working days (sooner if possible)
• Try to provide as full a response as possible, in line with the MPA’s commitment to openness
• Remember that we have a duty under the Act to give advice and assistance to people who may be making an FoI request

Dealing with FoI requests

FoI process

5.1 Attached as Appendix 2 is the process that is followed for dealing with FoI requests. Liaison Unit staff deal with most of this process, but Stage 3 is the responsibility of any unit that may hold the requested information. For ease of reference, this stage is as follows:

Stage 3. Information collection

• This stage is the responsibility of the unit(s) holding, or possibly holding, the requested information. On receipt of the ‘Request for Information’ form the Head of the unit or their nominated officer will, as soon as possible and within 10 working days at the latest:
• Establish whether the unit holds any of the information requested:
• • In current hard copy files
  • In archived files
  • Electronically in S: or M: drive directories managed by the unit, or H: drive directories of individual members of staff
  • In any other format
• If no information is held make a nil return to the Liaison Unit immediately
• If information is held, assess how much time will be needed to retrieve it. If that is likely to take more than X staff hours the unit must contact the Liaison Unit immediately to discuss, as the MPA may decide to charge a fee for supply of the information
• Collate the information to supply to the Liaison Unit in both hard copy and electronic form if possible
• In doing so, consider whether, in your view, all or part of that information should not be disclosed to the applicant because one of the FoI exemptions applies. If this is the case the unit must identify what specific information is affected and give reasons why one or more of the exemptions might apply
• Consider also whether the information has been obtained from another organisation or third party who may need to be consulted before a decision is taken on disclosure. Identify any third parties on the ‘Request for Information’ form

5.2 Responding to an FoI request will normally involve providing a copy of the source documents. Each unit must, therefore, maintain a filing system that enables them to locate documents quickly – both hard copy documents and those stored electronically. The MPA’s Records Management Policy – attached as Appendix 3 – places responsibility for this on the Head each unit.

Exemptions

5.3 The MPA wants to be as open as possible and the presumption is that we will disclose information wherever possible. The FoI Act does, however, include exemptions that enable authorities to withhold certain information. Some of these exemptions are ‘absolute’ and some are ‘qualified’. In the latter category we have to carry out a test to determine whether the public interest in withholding the information outweighs the public interest in releasing it. The exemptions are summarised below and further guidance from the Department for Constitutional Affairs is attached as Appendix 4. The Liaison Unit will be responsible for making decisions on whether an exemption should apply. If you believe that the information requested should be exempt you should advise the Liaison Unit which exemption you think should be applied and why. Fuller written guidance on the exemptions is available on request.

Absolute exemptions:

• Information accessible to applicants by other means – in particular if the authority has already published the information in its FOI Publication Scheme
• Information supplied by or relating to bodies dealing with security matters
• Personal information – this acts as a gateway to the Data Protection Act
• Information provided in confidence – this applies if releasing information would amount to an actionable breach of confidence at the time the request is made. The authority would be open to criticism from the Information Commissioner if it agreed unjustifiably to accept information ‘in confidence’
• Prohibitions on disclosure – this applies to information the disclosure of which is prohibited by any legislation, or if disclosure would be a contempt of court
• Court records
• Parliamentary privilege
• Prejudice to effective conduct of public affairs – only applies to the House of Commons and the House of Lords

Qualified exemptions, subject to a public interest test:

• Information intended for future publication
• National security
• Investigations and proceedings conducted by public authorities – information held for the purpose of criminal investigations and proceedings
• Law enforcement – which covers a wider range of functions than the one above
• Audit – applies to information held by public authorities which have a function relating to audit or examining the economy, efficiency and effectiveness of the use of resources of other public authorities. Information is exempt if disclosure is likely to prejudice those functions
• Health and safety – information that would, or would be likely to, endanger the health or safety of any individual
• Environmental information – this is covered by the Environmental Information Regulations
• Personal information – third party requests
• Commercial interests – trade secrets and information which, if disclosed, would prejudice the commercial interests of any person, including the authority holding it
• Formulation of government policy
• Communication with Her Majesty etc and relating to the conferring of honours
• Defence – information likely to prejudice national defence or the armed forces
• International relations
• Relations within the United Kingdom – information likely to prejudice relations between the UK governmental administrations
• The economy
• Legal professional privilege

5.4 The fact that part of a document contains exempt information does not mean that we can withhold the whole document. A process known as ‘redaction’ has to be carried out – essentially removing from the document those parts to which an exemption applies.

If you believe that all or part of a document is covered by an exemption please give the Liaison Unit your reasons and identify which parts of the document you believe to be exempt.

The Public Interest Test

5.5 If we consider that one or more of the qualified exemptions may apply to information, we have to carry out a public interest test. Essentially, this is a process of deciding whether in any particular case it serves the interests of the public better to withhold or to disclose the information. The interest in maintaining the exemption must outweigh the interest in disclosing the information, otherwise the interest must be disclosed.

‘Information has been requested about the comparative detection rates for burglaries by borough command. The police may consider that by providing this information there is some risk that criminals may be able to make use of it in planning crimes. However, this risk must be weighed against the general public interest in openness, promoting accountability and increasing participation in public debate about policing’.

5.6 The Act does not define the term ‘the public interest’ but one distinction that has often figured in court cases is that between things which are in the public interest and things which merely interest the public. The Information Commissioner has identified the following public interest factors as encouraging the disclosure of information:

• furthering the understanding of and participation in the public debate of issues of the day. This factor would come into play if disclosure would allow a more informed debate of issues under consideration by the Government or a local authority.
•  promoting accountability and transparency by public authorities for decisions taken by them. Placing an obligation on authorities and officials to provide reasoned explanations for decisions made will improve the quality of decisions and administration.
• promoting accountability and transparency in the spending of public money. The public interest is likely to be served, for instance in the context of private sector delivery of public services, if the disclosure of information ensures greater competition and better value for money that is public. Disclosure of information as to gifts and expenses may also assure the public of the personal probity of elected leaders and officials.
• allowing individuals and companies to understand decisions made by public authorities affecting their lives and, in some cases, assisting individuals in challenging those decisions.
• bringing to light information affecting public health and public safety. The prompt disclosure of information by scientific and other experts may contribute not only to the prevention of accidents or outbreaks of disease but may also increase public confidence in official scientific advice.

5.7 Factors which cannot be taken into account include:

• public curiosity (as opposed to the public interest)
• that disclosure would cause embarrassment (for instance if it shows that an official has made a mistake)
• complex or confusing information (i.e too complex for the person making the request to understand)

Third party consultation

5.8 The release of information may have implications for a third party – an organisation or individual. In these cases the Liaison Unit will consult with that third party. The third party would be invited to put forward reasons why an exemption might apply, but the final decision rests with the MPA, as the holder of the information (even if that information originated from that the third party).

In supplying information / documents to the Liaison Unit, can you identify any third parties which you consider should be consulted.

Liaison with the MPS

5.9 Close liaison with the MPS will be an important element of our FoI response. A lot of the information we hold will have originated from the MPS and so we may need to consult with them before release in some cases. Judging from the kinds of correspondence we already receive, we will get FoI requests that should properly be made to the MPS (because they relate to information held by the MPS, not the MPA). The link will be between the MPA’s Liaison Unit and the MPS’s Government Affairs Unit. A protocol has been agreed, which is attached as Annex 3 to Appendix 2

Useful links

• Department for Constitutional Affairs: www.dca.gov.uk 
• The Information Commissioner: www.informationcommissioner.gov.uk 
• The Constitution Unit, University College London: www.ucl.ac.uk/constitution-unit 
• The National Archives: www.nationalarchives.gov.uk 

Appendix 1 - Freedom of Information Act application form

This form is to be used to make a request to the Metropolitan Police Authority under the Freedom of Information Act 2000

Freedom of Information Act application form [word]

Appendix 2 - FoI Request handling

The main elements of process for responding to FoI requests are set out below. With the exception of Stage 3, Liaison Unit staff are responsible for the actions described. This document is not intended to cover every eventuality and the overriding aim is to be as helpful as possible to the applicant, which may at times mean not sticking rigidly to procedure.

Steps marked with an # must be signed off by the Head of Secretariat.

Reference to MPA units also applies to outsource service providers where relevant.

Stage 1. Initial receipt of request

1.1 Receive request and date stamp it (not necessary for emails). If the request is a referral from another MPA unit, the clock starts from when the request was first received by the MPA. If there is no information on this take it to be two days after the date on the letter.

1.2 Decide whether it is an FoI request

1. If deemed not to be an FoI request, respond in usual way but include an FoI information leaflet with the response (guidance on what is considered to be ‘business as usual’ is attached as Annex 1
2. If it is an FoI request go to step 1.3.

1.3 Is it clear from the request what information is being asked for?

1. If it is clear, go to step 1.4
2. If it is not clear, or the request is phrased in a very general way, contact the applicant, preferably by phone, then go to step 1.4

1.4 Log request on FoI recording system

1.5 Consider whether the applicant needs particular assistance (because of language, disability, unfamiliarity with dealing with officialdom etc) to ensure their equality of access to the FoI process

1.6 Confirm receipt in writing (letter or email) and go to Stage 2 1

Stage 2. Assessment

2.1 Is it a DPA subject access request? (an absolute exemption – S.40). #If so pass to Head of HR. If it is a third party request for personal information it remains within the FoI framework

2.2 Is it an EIR request? If so deal with under those regulations – Annex 2

2.3 If, from the subject matter, it is certain that the MPA will not be holding any information, reply to the applicant giving advice, if possible, as to which organisation they might contact. NB, there is a different process if that other organisation is the MPS – see Annex 3

2.4 Is all the information requested already in the public domain, e.g. in the FoI publication scheme? This is an absolute exemption (S 21). If so inform the applicant (including information on the review / appeal process) and update and close the FoI record

2.5 Identify which unit(s) may hold this information. Issue them with an ‘Request for Information’ form – Annex 4 - and go to Stage 3

2.6 If it appears possible that the MPS may also hold information, carry out the process in Annex 3, at the same time as progressing the request to the MPA

Stage 3. Information collection

This stage is the responsibility of the unit(s) holding, or possibly holding, the requested information. On receipt of the ‘Request for Information’ form the Head of the unit or their nominated officer will, as soon as possible and within 10 working days at the latest:

3.1 Establish whether the unit holds any of the information requested:

1. In current hard copy files
2. In archived files
3. Electronically in S: or M: drive directories managed by the unit, or H: drive directories of individual members of staff
4. In any other format

3.2 If no information is held make a nil return to the Liaison Unit immediately

3.3 If information is held, assess how much time will be needed to retrieve it. If that is likely to take a significant number of staff hours the unit must contact the Liaison Unit immediately to discuss, as the MPA may decide to charge a fee for supply of the information

3.4 Collate the information to supply to the Liaison Unit in both hard copy and electronic form if possible

3.5 In doing so, consider whether, in your view, all or part of that information should not be disclosed to the applicant because one of the FoIA exemptions applies. If this is the case the unit must identify what specific information is affected and give reasons why one or more of the exemptions might apply

3.6 Consider also whether the information has been obtained from another organisation or third party who may need to be consulted before a decision is taken on disclosure. Identify any third parties on the ‘Request for Information’ form

Stage 4. Release of information and decisions on exemptions

On receipt of completed ‘Request for Information’ form(s):

4.1 If there is a nil return, tell the applicant in writing, update and close the FoI record

4.2 If the unit has identified that it will take more than XX hours to retrieve and prepare the information, calculate the cost:

1. If the cost is up to £599 issue a fees notice. Do not progress until payment has been received. The clock stops until payment has been received.
2. If the cost is £600 or over, inform the applicant that the information will not be provided and give advice/assistance to help them phrase a request that is within the fees limit (if possible)

(This part of the process will be amended once the government has issued regulations on fees)

4.3 If the unit is of the opinion that an exemption may apply to all or part of the information, refer the matter to the Head of Secretariat to carry out a public interest test.

4.4 If the information held by the MPA was obtained from another organisation or relates to a third party, consult them to ask whether they believe they would be prejudiced by release and if so exactly why and how and by what specific parts of the information. If they consider they would be prejudiced refer the matter to the Head of Secretariat to consider as part of the public interest test.

4.5 If there are no concerns about the release of the information a reply should be made to the applicant as soon as possible, and the FoI record updated and closed

4.6 If the 20 day deadline will not be met for any reason - such as the need to carry out a public interest or because of the amount of information requested – write to the applicant giving them an estimate of when a substantive reply will be made

Stage 5. After replying

5.1 Include details of the FoI request on the disclosure log

5.2 Consider whether the information provided is of wider interest and should be included in the FoI Publication Scheme

5.3 Deal with any subsequent complaints or appeals as set out in the MPA complaints procedure.

Annex 1

MPA ‘Business and usual' criteria

The following types of correspondence will be treated as routine business and not formally recorded as a statutory request under the Freedom of Information Act.

This list may be developed in the light of experience.

However, all members of the public or non-governmental organisations responded to in this way will at the same time be informed of their rights under the FOIA (by way of the MPA’s FoI leaflet).

• Information requested by other public authorities or government departments (unless the FOIA is quoted) – but requests from individual councillors, MPs or Greater London Assembly members will be handled under FoI
• Requests for information, briefings etc made by the MPA’s own members and staff, unless the FOIA is quoted
• Formal written questions, the answers to which are subsequently published – e.g. the Greater London Assembly’s Functional Bodies Question Time
• Correspondence which is purely seeking:
• • advice
  • a view or comment on an issue
  • where the correspondence is a matter for the MPS (e.g. a complaint about the actions of a police officer) but is not deemed to be a request for information, it will be referred to the MPS as a non-FoI matter
• Complaints against the Authority
• Data Protection subject access requests
• Requests from other organisations for personnel references
• Requests for recruitment packs and application forms
• Media enquiries that are looking for a comment from the Authority, as opposed to information held by the Authority

Annex 2

Environmental Information Regulations 2004  - to be published

Annex 3

Freedom of Information Act (FOIA), 2000, - Requests requiring co-ordination between MPA and MPS staff

This protocol, between the MPA and the MPS, is intended to apply in circumstances where requests made under the FOIA require co-ordination between the two authorities. This may arise when information is jointly held or where decisions to disclose or withhold information have an impact on the other authority. It is also desirable that communication occurs where it is known or believed that requested information is held by the other authority.

1. Purpose of the protocol

1.1 To establish principles and processes where the MPA and/or the MPS:

• receives an FOI request for information that it does not hold but which it believes is held by the other authority
• receives an FOI request for information that both authorities hold
• needs to consult with the other authority prior to release of information, particularly in terms of whether an exemption should apply

1.2 To aim for a consistent approach between the two authorities on how exemptions are interpreted and applied.

1.3 To address approaches to vexatious, campaign or mosaic requests

1.4 To operate from a joint understanding of which requests for information will be recorded and processed in accordance with the requirements of the FOIA;

2. Principles

2.1 Some principles underpin how the authorities approach FOI requests in the above circumstances:

1. An overriding presumption of disclosure
2. The aim is to be as responsive as possible to requests for information, particularly in terms of helping applicants to clarify their request and to transfer that request, with their agreement when the information is held by the other authority.
3. It is not possible for one authority to act as a single point of contact where information is also held by the other – each body must deal with the request individually.
4. As the authority receiving the request holds the information, it must ultimately decide whether it should be disclosed, irrespective of ownership or impact on the other authority. In doing so:
5. Where the information originated from the other authority, the receiving authority will consult to invite views on whether the information should be exempt from disclosure and where the public interest lies
6. Where both the MPA and the MPS hold relevant information a common approach to decisions on disclosure will be sought, as far as possible and when it is in the public interest to do so
7. The MPS and MPA will enable access to each other’s disclosure logs with a view to achieving, as far as possible, a consistent approach to FOI requests.

3. Process

3.1 In terms of this protocol, contact will be between the MPA’s Liaison Unit and the MPS’s Commissioner’s Secretariat

3.2 Where one authority receives a request for information it does not hold but which it believes may be held by the other:

1. The receiving authority (r.a.) will check with the other whether it is likely that it holds information. To avoid delay, only a general indication that information may be held is necessary, rather than a search to confirm. No details of the identity of the applicant will be given. If this is not possible because of the nature of the request, then the r.a. must first contact the applicant to confirm that they wish their request to be transferred.
2.  Once it appears likely that the other authority holds information:

1. The r.a. will contact the applicant, preferably by phone, to obtain their agreement to transferring the request to the other. If the r.a. has any doubts about the sensitivity or confidentiality of the request, it will request the applicant’s agreement in writing (letter or email).
2. The r.a. will confirm in writing to the applicant that they do not hold that information but have transferred the request to the other as that body may hold the information, with the consent of the applicant
3. The other authority’s 20 working days deadline starts from the date on which the transferred request is received by them
4. The r.a.’s involvement ceases once it has confirmed in writing to the applicant that it does not hold information and has transferred the request to the other

3.3 Where one authority receives a request for information which it does hold, but it believes that information may also be held by the other, or that the disclosure has the potential to impact the other:

1. The r.a. will deal with the application under its own procedures to supply the information it holds to deadline.
2. Where the information it holds originated from the other, the r.a. will consult with the other before deciding whether or not to accede to the request. The other authority will use best endeavours to respond promptly and in any case within a maximum of five days. The r.a. is under no obligation to wait for a response from the other if this were to lead to it not meeting its deadlines.
3. Concurrently, it will check with the other authority whether it is likely that it also holds information. To avoid delay, only a general indication that information may be held is necessary, rather than a search to confirm. No details of the identity of the applicant will be given. If this is not possible because of the nature of the request, then the r.a. must first contact the applicant to confirm that they wish their request to be transferred.
4. Once it appears likely that the other authority holds information:

1. the r.a. will contact the applicant, preferably by phone, to obtain their agreement to transferring the request to the other. If the r.a. has any doubts about the sensitivity or confidentiality of the request, it will request the applicant’s agreement in writing (letter or email).
2. In supplying their own information to the applicant, the r.a. will confirm in writing to the applicant that they have also transferred the request to the other authority
3. The other’s 20 working days deadline starts from the date on which the transferred request is received by them

5. Where the r.a. proposes to apply an exemption in relation to the information it holds, it will give the other details of the exemption category and the grounds for refusal, in sufficient time to enable the other to take this into account in its own decision-making process. Subject to meeting deadlines, the r.a. will not inform the applicant of its decision until the other has had an opportunity to comment (with a view to achieving consistency of decision-making and interpretation)

4. Disclosure logs

4.1 The MPA and the MPS will enable access to each others’ disclosure logs, on a depersonalised basis if necessary, so that:

• An understanding of the nature and type of requests can be developed and how each body is responding to them
• Information can be shared about potentially vexatious applicants or similar requests being received from a variety of applicants the response to which might benefit from a co-ordinated approach

5. Publication Schemes

5.1 Regular meetings will be established between appropriate staff to ensure that the MPA and MPS Publication Schemes provide requested material proactively, work in partnership to plan future new material to be published and identify frequently requested material to publish reactively.

6. Review

6.1 The operation of this protocol will be kept jointly under review to ensure that it is developed in the light of experience, and will be initially reviewed in March 2005

Date of agreement: 4 October 2004  

Annex 4

The form to request information from units

This form is to be completed by the unit when responding to a Freedom of Information request

Freedom of Information: Request for Information [word]

Appendix 3

Metropolitan Police Authority Records Management Policy

1. Purpose

1.1 This records management policy establishes a framework for the creation, maintenance, storage, use and disposal of MPA records. It supports the Authority’s corporate governance and in particular aims to assist MPA compliance with the Freedom of Information Act 2000 (FOIA).

2. Scope

2.1 This policy applies to the Metropolitan Police Authority as a whole, all its staff and any consultants or temporary staff engaged to work for it.

2.2 The policy covers all records held by the MPA. A record is retained information in any form (it may be an electronic file, e-mail, a paper document or an audio/visual record) created or received by the MPA or individual members of staff as part of MPA business or activities.

3. Policy Statement

3.1 The MPA’s records are an essential underpinning of its business. They are necessary for good corporate governance: to comply with legal requirements, to provide evidence of and reasons for decisions and actions, and to provide evidence for future decision-making.

3.2 The MPA recognises the importance of this essential resource and undertakes to:

1. Manage records within a single corporate framework, according to agreed procedures
2. Comply with legal obligations that apply to its records (see annex A)
3. Exercise best practice in the management of records
4. Encourage effective access to and use of records as a corporate source of information
5. Keep records electronically where appropriate
6. Store records efficiently and safely, using appropriate storage methods at all points in their lifecycle and disposing of them when they are no longer required
7. Identify and safeguard records necessary for the business continuity of the MPA in the event of a disastrous occurrence
8. Identify and make provision for the preservation of records of long-term and historical value

4. Roles and Responsibilities

4.1 In the short-term the Head of Secretariat is responsible for developing corporate records management policy, procedures and guidance to enable the MPA to meet its responsibilities under the FOIA and other relevant legislation. This arrangement will be reviewed in the light of experience, specifically when the general right of access under the FOIA comes into force in January 2005. The Authority recognises that a specific post responsible for corporate knowledge and records management may be necessary.

4.2 The Head of each unit is responsible for ensuring that his/her unit has and maintains an efficient record filing and retrieval system – both hard copy and electronic – that captures all records however and wherever created (including in personal drives or PCs used by their staff). They are also responsible for ensuring that their staff receive adequate development and support to comply with this policy. The actions taken by each unit head in this regard will be assessed as part of the annual staff development and appraisal process. For the purposes of this policy the unit heads are defined as:

• Director of Internal Audit
• Deputy Treasurer
• Head of Human Resources and Professional Standards
• Head of Race and Diversity
• Head of Community Engagement
• Head of Partnerships
• Director of Communications
• Head of Administration
• Head of Scrutiny and Review
• Head of Performance
• Head of ISIT
• Head of Secretariat
• The Clerk and Deputy Clerk are jointly responsible in terms of their p.a. support

4.3 Each unit head will designate a permanent member of staff to act as the contact point in relation to information requests under the FOIA and other legislation and will ensure that that member of staff receives the support necessary to carry out this role.

4.4 All MPA staff are responsible for documenting their work and keeping records in line with MPA policies and procedures.

4.5 The Head of Administration is responsible for the co-ordination of off site storage for non-current records. However, each unit head continues to be responsible for those records in terms of indexing their contents and decisions on retention, disposal or destruction in line with MPA policy and practice.

5. Implementation

5.1 Each unit will maintain their own filing systems, within corporate guidance and requirements. An overarching corporate file plan will be developed which brings together the totality of records held by the MPA.

5.2 A retention schedule outlining the MPA’s policy for retention and disposal of records will be produced and implemented.

5.3 MPA units (as defined-in 4.2) will maintain a list of paper and electronic files held within their work areas/shared network drives.

5.4 A system for allocating access to records will be developed and implemented, ensuring that information is made available when possible, but is protected when necessary.

5.5 An online manual of records management guidance will be developed and made available on the MPA intranet.

5.6 Records of historical value will be identified as early as possible and transferred to an appropriate archive when MPA use has ended. Records not required for historical purposes will be destroyed in line with the MPA’s retention schedule.

5.7 Electronic document and, records storage and. Management facilities will be developed to ensure that electronic records are reliable, authentic and are preserved for as long as required and destroyed when they are not.

6. Legal Obligations

6.1. All records created during the course of MPA work are the property of the Authority.

6.2 When an information request has been received under the FOIA, the MPA and its staff are obliged to release that information unless an absolute or qualified exemption applies. It is a criminal offence for a member of staff to destroy or change all or part of a record which is the subject of an information request.

7. Review

7.1 This policy will normally be reviewed every two years to ensure that it continues to meet the MPA’s needs.

July 2004

Annex A

Legislation relevant to records management

• Data Protection Act 1998
• Environmental Information Regulations 1992 (revision due shortly)
• Freedom of Information Act 2000
• Greater London Authority Act 1999
• Limitation Act 1980
• Local Government (Access to Information) Act 1985
• Local Government (Records) Act 1962
• Local Government Act 1972
• Taxes Management Act 1970
• Value Added Tax 1994

Appendix 4

Information on exemptions produced by the department for constitutional affairs

Section 21: Information accessible to applicant by other means

Section 21 applies to information that is already reasonably accessible to the applicant. It recognises that the right of access under the Freedom of Information Act 2000 is supplementary to the very many ways in which public authorities already provide information to members of the public. For example, section 21 will apply if information is included on a public authority’s publication scheme or if the public authority is under a statutory obligation to give out the information to members of the public on request.

Key points:

• The question is whether the information is reasonably accessible to the applicant: public authorities need to be alert to any attributes of an individual applicant which may mean that information is more or less accessible to him than it is to the public at large;
• Section 21 may apply even if a fee is charged for supplying the information;
• There is no exclusion in section 21 of the duty to confirm or deny whether information is held. Even if information is exempt under section 21, public authorities may still have to tell the applicant whether or not they hold the information requested.
• Section 21 is not subject to any public interest balance.

Section 22: Information Intended For Future Publication Exemption

Section 22 may apply if there is an intention to publish the requested information at some future date. This ensures that the FOI Act does not force public authorities into premature publication of information.

Key points:

• Section 22 may apply even if the specific date for publication has not yet been determined but the proposed publication timetable must be reasonable in all the circumstances;
• Section 22 will only apply if a public authority has decided, before the request is received, to publish the information concerned.
• Section 22 is subject to a public interest balance.

Section 23: Information Supplied by, or Related to, Bodies Dealing with Security Matters

Section 23 applies to two categories of information:

• information supplied directly or indirectly by the Security Bodies that are listed in section 23(3) (this includes the Security Service, the Secret Intelligence Service and GCHQ). Whether this aspect of section 23 applies in a particular case will turn on the source of the information; and
• information that relates to one of the Security Bodies. The application of this part of section 23 will turn on the content of the information.

Key points:

• The fact that a public authority does not hold information supplied by one of the Security Bodies can itself be information relating to those bodies. If information falls within the exemption in section 23, it will very often be important to consider whether it is necessary to rely on the exclusion of the duty to confirm or deny whether the information is held.
• The interaction between section 23 and section 24 (national security) is quite complex and needs to be considered carefully in order to ensure that the relevant public interests are protected;
• It may be necessary to consult the Security Body concerned if it is anticipated that section 23 might apply
• Section 23 is not subject to any public interest balance
• A ministerial certification procedure exists where it becomes necessary to rely on this exemption.

Section 24: National Security

Section 24 applies to information whose exemption from the right of access is required for the purpose of safeguarding national security: in order to apply section 24, it will be necessary to decide whether any harm to national security might result from its disclosure.

Key points:

• In some circumstances it may be necessary to rely on both section 23 and section 24 in order to refuse to confirm or deny whether information is held in order to fully protect the important public interests concerned;
• When considering section 24, departments should be alive to the need to consult the National Security Liaison Group or other interested parties.
• Section 24 is subject to a public interest balance.
• A ministerial certification procedure exists where it becomes necessary to rely on this exemption.

Section 26: Defence

Section 26 applies to information whose disclosure would be likely to prejudice:

• the defence of the British Islands or any colony; or
• the capability, effectiveness or security of the armed forces of the Crown or any forces co-operating with them.

In order to determine whether section 23 applies it will be necessary to establish how exactly these defence matters would be prejudiced by disclosure of the information.

Key points:

• It will often be necessary to consult the Ministry of Defence in order to evaluate how and to what extent defence matters would be prejudiced by disclosure;
• Section 26 is subject to a public interest balance.

Section 27: International Relations

Section 27 applies to the following two categories of information:

• information whose disclosure would be likely to prejudice international relations. (The term “international relations” means relations between the UK and any other state, international organisation or court, or the interests of the UK abroad or the promotion or protection of those interests.)
• confidential information obtained from another state, an international organisation or an international court.

Key points:

• Departments should be alive to the need to consult the Foreign and Commonwealth Office in connection with the application of section 27
• Section 27 is subject to a public interest balance.

Section 28: Relations Within The United Kingdom

Section 28 applies to information whose disclosure would be likely to prejudice relations between two or more administrations in the United Kingdom. The relevant administrations are: the government of the United Kingdom, the Scottish Administration, the Executive Committee of the Northern Ireland Assembly and the National Assembly for Wales.

Key points:

• Where necessary, regard should be had to the Memorandum of Understanding which has been agreed with the four administrations and which includes safeguards to ensure that information shared between administrations is appropriately protected;
• Departments should be alive to the need to consult the other administration(s) concerned when determining whether section 28 applies, and in particular to be aware that separate freedom of information legislation applies in Scotland;
• Section 28 is subject to a public interest balance.

Section 29: The Economy Exemption

Section 29 applies to information whose disclosure would be likely to prejudice the economic or financial interests of the United Kingdom or of any administration in the United Kingdom.

Key points:

• Departments should be alive to the need to consult with HM Treasury when considering this exemption
• Section 29 is subject to a public interest balance;

Section 30: Investigations And Proceedings Conducted By Public Authorities

Section 30 is concerned primarily with preserving the integrity of certain proceedings and investigations which public authorities have the power or duty to conduct. There are two ways in which the application of section 30 may be triggered:

• where information has at any time been held for the purpose of specified criminal and other investigations or proceedings; and
• where information relates to the obtaining of information from confidential sources and was obtained or recorded for a number of specified investigations or proceedings.

Key points:

• Section 30 can only be relied on by an authority which itself exercises one of the investigation or litigation functions that are specified in the exemption.
• Section 30 is quite a complex exemption and Departments will need to be alert to the precise terms in which its two limbs are expressed.
• Section 30 is subject to a public interest balance.

Section 31: Law Enforcement

Section 31 is concerned with protecting a wide range of law enforcement interests and its application turns on whether disclosure would be likely to prejudice those interests.

Some interests that are protected by section 31 are drawn quite widely, for example: the administration of justice, the prevention or detection of crime and the operation of immigration controls. But section 31 also applies where the exercise by any public authority of certain specified functions would be prejudiced by disclosure. Those functions include: ascertaining whether a person is responsible for improper conduct, determining the cause of an accident and ascertaining a person’s fitness to carry on a profession.

Key points:

• Section 31 only applies in cases where the information does not fall within section 30;
• The structure of section 31 is quite complex and it will be necessary to have careful regard to the important differences between the way in which the various categories of information are framed
• The categories within section 31 may overlap and consideration should be given to all categories that may apply.
• Section 31 is subject to a public interest balance.

Section 32: Court Records

Section 32 exempts information contained in certain litigation documents and court, tribunal and inquiry records and will apply regardless of the content of the information. There are separate and specific regimes for gaining access to court and tribunal records and section 32 ensures that those regimes are not superseded by the FOI Act.

Key points:

• Section 32 will apply only if the public authority concerned holds the information solely because it was contained in one of the specified documents.
• Section 32 applies regardless of the content of the information
• The application of section 32 is not subject to any public interest balance.

Section 33: Audit Functions

Section 33 can only be used by public authorities which have financial audit functions in relation other public authorities or whose functions include examining the efficiency, effectiveness and economy with which other public authorities discharge their functions. Section 33 applies to information whose disclosure would be likely to prejudice the exercise of these functions.

Key points:

• Section 33 only applies where one public authority has audit or monitoring functions in relation to another public authority. It does not apply where a public authority has such functions in relation to private sector bodies, nor does it cover internal audit and monitoring;
• Section 33 is subject to a public interest balance.

Section 34: Parliamentary Privilege

Section 34 applies to information whose exemption is required in order to avoid an infringement of the privileges of either House of Parliament. The purpose of section 34 is to preserve Parliamentary privilege and protect the position of Parliament.

Key points

• Section 34 will need to be considered where a public authority is required to lay information before Parliament before disclosing it to anyone else.
• If privileged information has been published by Parliament then section 34 will not apply: exemption is not required in order to avoid an infringement of Parliamentary privilege.
• Section 34(3) enables the Parliamentary authorities to conclusively certify that section 34 applies. Departments are strongly advised to consult officials from the relevant House before relying on section 34 and to obtain a certificate where necessary.
• Section 34 is not subject to any public interest test balance.

Section 35: Formulation Of Government Policy

Section 35 is aimed at protecting the government policy-making process and its proper use is essential to ensuring the delivery of effective government. Section 35 applies to information which relates to:

• the formulation and development of government policy;
• communications between Ministers (including Cabinet proceedings);
• the provision of advice by the Law Officers (or any request for advice); and
• the operation of any Ministerial private office.

Key points:

• Section 35 can only be used by government departments or the National Assembly for Wales;
• Once a policy decision has been taken, statistical information that was used to inform the decision will no longer be protected only on the grounds that it relates to government policy or ministerial communications;
• Departments must be alive to the need to consult with interested departments and, where necessary, the DCA co-ordination unit to ensure that this exemption is properly applied;
• Section 35 It is closely related to section 36 which protects the effective conduct of public affairs but the two exemptions are alternatives and cannot be used cumulatively;
• Section 35 is subject to a public interest balance. Section 35(4) indicates that there is a particular public interest in the disclosure of factual information which is used to inform policy decisions.

Section 36: Prejudice To Effective Conduct Of Public Affairs

Section 36 exempts information whose disclosure would be likely to have any the following effects:

• prejudice collective Cabinet responsibility;
• inhibit the free and frank provision of advice and exchange of views for the purposes of deliberation; or
• prejudice the effective conduct of public affairs.

Key points:

• Section 36 can only be used if, in the reasonable view of a “qualified person”, disclosure of the requested information would have one of the specified prejudicial effects. For most government departments, this means that a Minister of the Crown must decide that the exemption applies before it can be relied on to refuse a request for information;
• Section 36 can only be used if section 35 does not apply to the information;
• The application of section 36 is subject to a public interest balance.

Section 37: Communications With Her Majesty, With Other Members Of The Royal Household, And The Conferring By The Crown Of Any Honour Or Dignity

Section 37 applies to two categories of information:

• Information relating to communications with Her Majesty, other members of the Royal Family or the Royal Household; and
• Information relating to the conferring by the Crown of any honour or dignity.

Key points:

• It is a fundamental constitutional principle that communications between the Queen and her Ministers are essentially confidential in nature: in most situations, the public interest in disclosure is likely only exceptionally to outweigh the public interest in maintaining this aspect of the exemption;
• In respect of both parts of this exemption, public authorities should be alive to the need to consult relevant departments or private offices;
• Section 37 is subject to a public interest balance.

Section 38: Health And Safety

Section 38 applies to information whose disclosure would be likely to endanger the physical or mental health or the safety of any individual.

Key points:

• The individual concerned does not have to be identifiable: section 36 can apply where there is a group or class of persons, any or all of whom are likely to have their health or safety endangered by disclosure;
• Section 38 is subject to a public interest balance.

Section 39: Environmental Information

Section 39 exempts environmental information whose disclosure is governed by the Environmental Information Regulations 2004. The Environmental Information Regulations 2004 implement an European Directive and establish a specific regime to enable individuals to access environmental information, including exemptions from that right of access. The disclosure of environmental information must be considered under the Environmental Information Regulations: section 39 therefore exempts this from the rights of access under the FOI Act.

Key points:

• If information is environmental information and is exempt under section 39, public authorities must consider its disclosure under the Environmental Information Regulations 2004; the Regulations may require the disclosure of information which would otherwise have been exempt under the FOI Act.
• Section 39 is subject to a public interest balance, but this should not be considered independently of the operation of the provisions in the Regulations.

Section 40: Personal Information

Section 40 concerns personal data within the meaning of the Data Protection Act 1998. Section 40 applies to two distinct types of requests for information:

• if a request asks for the personal data of the applicant himself, the information is exempt; and
• if a request asks for the personal data of someone else then that information will be exempt if its disclosure would contravene any of the data protection principles in the Data Protection Act 1998 (or certain other provisions of the Data Protection Act 1998).

Key points:

• If information is exempt under section 40 because it is the personal data of the applicant then its disclosure must be considered under the subject access provisions in the Data Protection Act 1998; the Act may require the disclosure of information which would otherwise have been exempt under the FOI Act.
• For most government departments that receive requests for personal data of someone other than the applicant, the application of section 40 will in most circumstances turn on whether disclosure of the information to a member of the public would be ‘unfair’.
• Officials must be alive to the need to consult experts where the application of section 40 is difficult or unclear: getting a decision wrong may result in breach of the Data Protection Act 1998.
• The majority of section 40 is not subject to a public interest balance.

Section 41: Information Provided In Confidence

Section 41 applies to information that has been obtained from another person and whose disclosure to the public would constitute an actionable breach of confidence.

Key points:

• Section 41 will only apply where a person would be able to bring a successful action for breach of confidence as a result of disclosure to the public;
• Section 41 is not subject to a public interest balance imposed by the FOI Act. But, the courts have recognised that a person will not be successful in an action for breach of confidence if the public interest in disclosure outweighs the public interest in keeping the confidence;
• The application of section 41 may require detailed consideration of the law of breach of confidence: expert advice will often be necessary.

Section 42: Legal Professional Privilege

Section 42 applies to information that would be subject to legal professional privilege if litigation were in progress. Legal professional privilege covers confidential communications between lawyers and clients and certain other information that is created for the purposes of litigation. Section 42 ensures that the confidential relationship between lawyer and client is protected.

Key points:

• Whether information is subject to legal professional privilege is a question of law and it will very often be necessary to consult legal advisers in connection with this;
• Advice from the Law Officers is also governed by section 35 and the Law Officers should be consulted where their advice is the subject of a request;
• Section 42 is subject to a public interest balance. But, given the very substantial public interest in maintaining the confidentiality of legally professionally privileged material, it is likely to only be in exceptional circumstances that this will be outweighed by the public interest in disclosure.

Section 43: Commercial Interests

Section 43 exempts information whose disclosure would be likely to prejudice the commercial interests of any person. It also includes a specific exemption for trade secrets.

Key points:

• Section 43 protects not only the commercial interests of third parties but also the commercial interests of the public authority that holds the information;
• Public authorities will need to bear in mind that the commercial sensitivity (particularly the market sensitivity) of information will usually decrease with time;
• Section 43 is subject to the public interest test.

Section 44: Prohibitions On Disclosure

Section 44 applies to three distinct categories of information:

• If there is an existing statutory bar to the disclosure of information by a public authority then that information will be exempt;
• If disclosure would be incompatible with a European Community obligation then the information will be exempt; and
• If disclosure would constitute or be punishable as a contempt of court at common law (for example because it would breach a court order) then it will be exempt.

Key points:

• The Human Rights Act 1998 can be a statutory bar to the disclosure of information if to do so would breach one of the Convention rights that have been incorporated into domestic law;
• Section 44 is not subject to any public interest balance.

Fuller guidance is available from the Ministry of Justice and the Information Commissioner:

Ministry of Justice
Information Commissioner's Office

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